What America Can Learn From Norway's Anders Breivik Trial

How U.S. treatment of its own high-profile terrorist -- Khaleid Sheikh Mohammed -- compares to the Norwegian model.

Anders Breivik gives a closed-fist salute to reporters on arriving at his Oslo trial. Reuters

The
terrorism of Anders Behring Breivik is so horrific it can be difficult
to even describe. Last July, he detonated a car bomb in Oslo, killing
eight, before ambushing a left-wing political youth retreat, where he
executed 69 people, mostly teenagers. Breivik, a self-styled "militant"
who was ruled not insane by state-appointed experts, represents northern Europe's far-right ethnic nationalism
in its most extreme form. Both Breivik and his violent, dangerous
ideology have an enormous soapbox with his trial in Oslo this week, from
which international media organizations are beaming his words and ideas
across the globe.

It's exactly what the U.S. worried would
happen if it tried Khaleid Sheikh Mohammed, the September 11 mastermind,
in a New York city courtroom as originally intended. It's the very
scenario we avoided by deciding instead to try him in a military trial
at the Guantanamo Bay military detention facility. "There are other
places to try it in the U.S. that are much more remote, much less a
target, and much less a squatting ground for propaganda around the
world," Senator Dianne Feinstein, a Democrat from California, explained at the time. Bush-era torture policy architect John Yoo called the choice
part of "the hard, ever-present trade-off between civil liberties and
national security," warning that a New York civilian trial would
compromise the latter. In early 2010, as the national debate over the
KSM trial reached its boiling point, New York Mayor Michael Bloomberg demanded
the federal government not hold it in his city. A number of prominent
legislators from both parties joined him and, with the passage of the
2011 National Defense Authorization Act, the trial was barred from
American soil altogether, and thus from American courtrooms.

So,
disaster averted, right? KSM never got his big platform to preach
al-Qaeda's ideology, never spread his toxic ideas around the world
abetted by an over-eager media, never became a glowing New York-based
beacon for the world's would-be terrorists. Well, judging by the Breivik
trial, that's probably not really what would have happened, and there's
good reason to think it might have actually damaged KSM's ideological message, rather than furthering it.

Breivik appears to be deliberately using the trial and its media coverage, which he is clearly enjoying, as a platform to glorify his awful crime
and the beliefs behind it. "These acts are based on goodness, not
evil," he said. "I would have done it again, because offenses against my
people ... are many times as bad." The family members of survivors were
visibly pained as he explained that it was "critically important" for
the world to hear his explanation, which they will. He called his attack
"the most spectacular sophisticated political act in Europe since the
Second World War." It's not hard to imagine Khelid Sheikh Mohammed
saying something similar about September 11. In his manifesto before his
attacks, Breivik wrote a sort of primer for the other militants he was
hoping to inspire. "Your trial offers you a stage to the world," he noted.

And
yet, rather than sparking a far-right-extremist renaissance, or
inspiring a new generation of Breivik acolytes across northern Europe,
his public rantings appear to be having the opposite effect. European
white nationalist movements, of which Breivik represents an extreme
fringe, have been on the rise of years, gaining political power and, whether deliberately or not, inspiring violence.
But the popular backlash against Breivik has put them on the defensive.
Far-right such as the English Defence League, with which Breivik had
some indirect contact, are suffering
as Breivik reveals their disturbing ideological overlaps. When
far-right parties held a mass rally in Denmark earlier this month,
opposing protesters actually outnumbered them.

Al-Qaeda's
ideology, like Breivik's, has been called an extreme fringe of an
extreme fringe. In this case, al-Qaeda and KSM are often described as
part of an offshoot of colonial-era radical Islamism, a violent reaction to colonialism and post-colonial Middle Eastern dictators. KSM and Osama bin Laden's violence ended up alienating Muslims
not just from al-Qaeda but from radical Islamist movements more
broadly. Breivik's violence seems to have alienated immigrant-weary
white Europeans -- his intended audience -- from the far-right movements
of which he was a fringe loner. His trial is exacerbating that trend;
wouldn't KSM's trial have done the same?

Breivik is also showing
off Norway's criminal justice system, and its liberal democratic
architecture, to the world. University of Oslo professor Thomas
Mathiesen told the Associated Press
that the Norwegian system isn't about "revenge, but sober, dignified
treatment" of even the worst criminals. "It is deeply ingrained in
Norwegian tradition and fundamental values," he said of allowing
Breivik's rants. "If it lasts all the way through the 10 weeks of this
trial, and I think it will, we have an important message to the world."
The U.S. criminal justice system, which has similar protections for
defendants and their dignity, never got a chance to show itself off in
trying Khaleid Sheikh Mohammed before a curious world.

If and
when he is convicted, Norwegian law limits Breivik's prison term to only
21 years, a shockingly light sentence by American standards. (A court
can extend that sentence if they believe he is still a threat to
society.) He will likely serve in Norway's maximum security, which reportedly boasts
"mint-green walls and IKEA-style furniture in varnished natural wood"
as well as "a flat-screen TV, a private bath, and a large unbarred
window" in each cell. It's hard to imagine Americans allowing such soft
treatment for a mass-murdering terrorist. Yet, as New York Times opinion editor Andrew Rosenthal writes,
"Seems like a waste of money. And yet these cushy accommodations don't
attract repeat visitors. Only 20 percent of former convicts end up back
in jail after two years." The U.S. justice system focuses on
retribution, which is popular but not always effective. "Harsh
conditions don't seem to deter criminals, or prevent recidivism. Nearly
60 percent of former convicts end up back in jail after two years,"
Rosenthal writes.

If any crime merits execution, it would seem to
be an act of large-scale murder designed to terrorize an entire nation.
But Breivik will not meet the death penalty, which is banned in Norway
(and the vast majority of the developed world).
In February 2010, likely in response to public backlash against the
planned civilian trial for KSM, White House Press Secretary Robert Gibbs
told reporters, "Khalid Sheikh Mohammed is going to meet justice and
he's going to meet his maker. He will be brought to justice and he's
likely to be executed for the heinous crimes he committed." Capital
punishment scores well on opinion polls in the U.S., but a significant body of academic research has found it to be expensive and ineffective
at deterring crime. Gibbs probably knew this when he called for the
death penalty for KSM, which raises the question of whether the U.S.
justice system is driven more by good policy or by public opinion. A
significant number of Norwegians would probably like to see Breivik
executed -- one of his trial's judges had to sent home when the court
discovered he had posted online about wanting Breivik's execution -- but
Norway, as a society, has decided not to follow this particular
impulse.

It's probably too late for the U.S. political system to
reverse its very popular decision to bar Khaleid Sheikh Mohammed from a
civilian trial. And, even if he did see a court room, he would probably
get the death penalty or a life sentence in one of America's notoriously
violent prisons. Still, neither KSM nor Anders Breivik will be the last
terrorist to bring violence on a democratic society. How that society
responds, whether with the Norwegian model or the Guantanamo model,
seems to make a difference.